The CCMA (Commission of Conciliation, Mediation and Arbitration) is an independent authority that supports the implementation of fair labour practices within the workplace. Its function is to facilitate the objective resolution of a dispute between an employee and employer.
Typically, when a dispute arises, it starts with a conciliation. The aim is to resolve the dispute by reaching a mutual settlement agreement between the parties involved. A commissioner presides over a conciliation and will assist the parties in finding a solution and conclusion. A conciliation can be seen as an informal discussion such as a round table discussion between the parties at hand. If a mutual agreement is not reached within the conciliation process, the commissioner will issue a certificate of non-resolution.
From this point, the case may be referred to arbitration by way of filing a 7.13 form (Request for Arbitration). At this stage, the parties involved may seek and appoint a legal practitioner as a representative if this has not already been done. In order to take the case to the arbitration stage, the parties involved will need to complete and submit a referral form within 90 days from the date of the conciliation. If the case is based on dismissal during a probation period or if about amounts owning S 73 A, the case will automatically be moved to con-arb (conciliation/arbitration). This is the instance in which the arbitration directly follows the conciliation on the same day and in such instance the CON-ARB process may not be objected in terms of Section 191 read with rule 17(2) of the CCMA.
How Do I Prepare for CCMA Arbitration?
It is possible to settle through conciliation while the arbitration process is in motion. If the case is booked for arbitration, there are a few steps one can take to prepare for the hearing.
- Submissions and Statements of Case: the CCMA can request the parties to file and submit their statement of case (applicable in a complex case). In this statement, the party would provide information such as, a description of the dispute at hand, what the party is admitting and denying, as well as the evidence that the party is intending to provide. The corresponding party will then have the opportunity to deliver an answering statement. These statements must be submitted in the timeframe that has been given by the CCMA or commissioner. It is important to ensure that all documentation pertaining to the case that may prove your case pertaining to the dispute, is gathered.
- Pre-Arbitration Conference: a pre-arbitration conference may be held in the instance that both parties agree to one, or when it is ordered by a commissioner. The motivation behind a conference, is to elicit an agreement upon the nature of the dispute between both parties. Typically, this will result in each party admitting or denying facts surrounding the dispute. A pre-arbitration conference can only take place when both parties are represented by an employers’ organisation, a legal practitioner and/or a candidate attorney, or a trade union.
- Witnesses: it is advisable to decide upon the witnesses that will be called forward to testify, and prepare them for the hearing. It is important to ensure that they will be able to attend the hearing physically on the date of arbitration. The witness may decline the invitation to testify; however, if need be, the party requiring the witness in question, may apply to the CCMA for a subpoena that will make the presence of that witness at the trial an obligation.
- Legal Representation: it is advisable to ensure legal representation of a party at an arbitration hearing. There are multiple options when considering appropriate representation; however, a legal practitioner or candidate attorney with the correct experience and qualifications, is always advisable.
After the Arbitration Hearing
Once the arbitration hearing has been concluded, the commissioner presiding over the case will make their unbiased decision. The outcome will be issued via a written document which will be sent to both parties. This decision is final and both parties will have to fulfil the requirements of the ruling within the given time.
For more information on CCMA proceedings and the field of Labour Law, other legal advice, and consultation, contact our team of experts to solve your problem at hand.
*Some of the information in this article was taken from the Official CCMA website.
